Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24157/94

by Arpád MATEJKA

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 June 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 July 1993 by

Arpád MATEJKA against the Slovak Republic and registered on 18 May 1994

under file No. 24157/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Slovak citizen born in 1939. He is a member

of the National Council (Parliament) of the Slovak Republic and resides

in Trnava.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The particular circumstances of the case

In March 1992 the applicant received a certificate issued by the

Ministry of the Interior pursuant to Act No. 451/1991 (see Relevant

domestic law and practice below). He was then head of the Trnava

District Office. According to the certificate the applicant was

registered as a person mentioned in Section 2 para. 1 (b) of the

aforesaid Act. Although the certificate was confidential, its contents

were later revealed in the media.

On 11 May 1992 the applicant requested judicial review of the

certificate. On 15 July 1992 the Regional Court (Krajsky súd) in

Bratislava discontinued the proceedings introduced by the applicant as

under the law in force certificates issued to persons mentioned in

Section 2 para. 1 (b) of Act No. 451/1991 cannot be reviewed by

administrative courts. On 30 October 1992 the Supreme Court (Najvyssí

súd) upheld the Regional Court's decision. The decision of the Supreme

Court was served on 14 December 1992.

The applicant stood as a candidate in the parliamentary election

for the office of President of the Supreme Audit Office held on

25 June 1993. Although it was not formally required, a member of the

Parliament moved for confirmation, by those who had proposed the

candidates, that the nominees met the requirements of Act No. 451/1991.

The confirmation was given in respect of the other candidate. The

chairman then invited the applicant to submit a similar confirmation

by himself. The applicant declared that he had neither collaborated

with anybody nor signed anything. This declaration met with laughter

in the meeting room and was also commented upon in the press.

In the subsequent two polls the applicant received 68 and 67

votes. The other candidate received 59 votes. However, in order to

be elected 70 and 69 votes respectively were required. Thus neither

of the candidates was elected. Pursuant to the rules of procedure a

new election was held in which different candidates had to be

presented.

In September 1993 the applicant introduced a petition (podnet)

with the Constitutional Court (Ústavny súd). He complained that by

virtue of Act No. 451/1991 his rights were violated and requested that

the constitutionality of this Act should be examined. On 24 November

1993 the Constitutional Court rejected the applicant's petition as

individuals lack capacity to introduce proceedings on constitutional

conflicts.

Relevant domestic law and practice

Act No. 451/1991 of 4 October 1991 lays down supplementary

requirements for the holding of certain important posts and functions

in State organs and institutions which are filled by election,

designation or appointment. The Act prevents persons mentioned in

Section 2 para. 1 from exercising, for a period which expires on

31 December 1996, the functions enumerated in Section 1.

According to Section 2 para. 1 (b) the functions covered by the

Act can be exercised only by persons who are not registered in the

State Security (former secret police) files as "resident, agent,

conspiratorial flat holder, informer or ideological collaborator" of

the State Security. The fact that a person meets the requirements of

Section 2 para. 1 (b) of the Act is to be proved by means of a

certificate issued by the Ministry of the Interior.

It has been established by the judicial doctrine and the relevant

case-law that persons who consider themselves adversely affected by the

certificate can seek redress before civil courts by means of an action

for protection of their honour and reputation pursuant to Section 11

et seq. of the Civil Code.

COMPLAINTS

The applicant complains that Act No. 451/1991 is discriminatory,

violates the principle of presumption of innocence and does not provide

for a judicial review of the certificates issued by the Ministry of the

Interior.

The applicant further alleges that by application of Act No.

451/1991 he was convicted of a criminal offence and incurred the

penalty of being banned from certain posts in State organs and

institutions. He alleges that his dignity and good reputation had

suffered. He invokes Article 5 paras. 1 (b) and 4 and Article 6

paras. 1, 2 and 3 of the Convention.

Finally, the applicant complains that by the decision to apply

Act No. 451/1991 in the election for the office of President of the

Supreme Audit Office he was discriminated against and that his right

to promotion in employment was violated. He also complains that the

competent organs refused to protect his rights. The applicant invokes

Articles 14, 17 and 60 of the Convention in this respect.

THE LAW

1. The applicant alleges a violation of his right to liberty and

security of person guaranteed by Article 5 (Art. 5) of the Convention.

He further alleges that by virtue of Act No. 451/1991 he was

charged with and convicted of a criminal offence without having been

granted the guarantees provided for in Article 6 paras. 1, 2 and 3

(Art. 6-1, 6-2, 6-3) of the Convention.

Under Article 14 (Art. 14) of the Convention the applicant

complains of being discriminated against as (i) the Act No. 451/1991

prevents him from holding certain posts and functions in State organs

and institutions, and (ii) he was not elected President of the Supreme

Audit Office.

The Commission first observes that the applicant has not been

deprived of his liberty. Accordingly, Article 5 (Art. 5) of the

Convention is not applicable to the present case.

Secondly, it is to be noted that in the present case no criminal

proceedings were brought against the applicant. The Ministry of the

Interior issued the applicant with a certificate alleging that he was

registered as a person mentioned in Section 2 para. 1 (b) of Act No.

451/1991. However, the issue of this certificate cannot be regarded

as a criminal charge within the meaning of Article 6 (Art. 6) of the

Convention.

To the extent that the applicant complains of having been

discriminated against, the Commission recalls that Article 14 (Art. 14)

of the Convention applies only to the enjoyment of the rights and

freedoms guaranteed by the Convention.

However, in accordance with the Convention organs' case-law the

access to civil service is not a right guaranteed by the Convention

(cf., e.g., Eur. Court H.R., Glasenapp judgment of 28 August 1986,

Series A no. 104, p. 25, para. 48) and the applicant has not shown in

what other way he was discriminated against.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant further alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that the certificate issued to him by

the Ministry of the Interior could not be reviewed by administrative

courts.

However, the Commission finds that the final decision regarding

this complaint had been given by the Supreme Court on 30 October 1992

and served on 14 December 1992, which is more than six months before

the date on which the application was submitted. The applicant

therefore failed to comply with the six months' time limit laid down

in Article 26 (Art. 26) of the Convention.

It follows that this part of the application has to be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

3. The Commission finds that in substance the application may raise

an issue under Article 8 (Art. 8) of the Convention to the extent that

the applicant complains of a violation of his rights following (i) the

delivery of the certificate, and (ii) disclosure of its contents in the

media.

Article 8 (Art. 8) of the Convention, as far as relevant,

guarantees to everyone a right to respect for his private life.

The Commission does not deem it necessary to examine whether the

facts complained of affected the applicant's rights guaranteed by

Article 8 (Art. 8) of the Convention for the following reasons.

In the present case the courts refused the applicant's request

to review the certificate as they lacked jurisdiction in the matter.

The Constitutional Court rejected the request for review of the

constitutionality of Act No. 451/1991 as the applicant lacks capacity

to introduce proceedings on constitutional conflicts.

However, in accordance with the case-law of domestic courts the

applicant could have sought redress in this respect before a civil

court by means of an action for protection of his honour and reputation

pursuant to Section 11 et seq. of the Civil Code. Since the applicant

failed to do so he has not complied with the requirement as to the

exhaustion of domestic remedies laid down in Article 26 (Art. 26) of

the Convention.

It follows that this part of the application has to be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

4. Finally, the applicant complains of a violation of Articles 17

and 60 (Art. 17, 60) of the Convention. However, the Commission

considers that these complaints do not raise any separate issue under

the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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MATEJKA v. the SLOVAK REPUBLIC

MATEJKA v. the SLOVAK REPUBLIC

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